Studies On The Application Space Of Indirect Infringement Of Patent In China

Indirect Infringement theory has been always supported by the scholars in Intellectual Property area in China. The author has searched almost one hundred pieces of the analyses or monographs about this issue on patent from 1990 to 2009, finding out that nearly 90% of them persuade the sole legislation of indirect infringement in patent law in China, even in the whole area of Intellectual Property. Most scholars advised that the theory makes up for the protection to owners in patent law and supplies specific ways to judicial practice. Though the controversy of reconstruction of patent law was never stopped, the newly amended Patent Law, which was made in 2008 and executed in 2009, revises so much on novelty and compulsory license, fine with its implementing regulations, gives no words on indirect infringement of patent. Someone said it was a serious failure and someone said the institution on indirect infringement was not perfect enough. The author was interested in indirect infringement for long and the paper will examines the institutional theory radically again from the view of civil law by contacting social reality and comparing to the laws of other countries and districts.Referring to the cases in our courts, the author found that the decisions made on indirect infringement of patent were different in different cities. Part of them quoted the principle of indirect infringement and part of them tried on the bases of joint tort articles in Civil Law. Theoretically, the joint tort and indirect infringement was originated from different law systems as well as their culture background, but a great similarity do existed between them. In the first case on indirect infringement of patent in US, Judge Woodruff also decided according to the rule as"joint tort-feasors". There was a natural relationship between joint tort and indirect infringement.With the decree of Tort Law, the tort law system in China was completed progressively. Actually, the indirect infringement institution forwarded by scholars can be embraced in joint tort, named as fiction joint tort, and the comment was proved by the law existed in Japan and Taiwan District. Considering the actual situation in our country, we deemed that the indirect infringement of patent do not have reasonable application space in China now.This paper briefs the issue into three parts, the introduction, the text and the conclusion.The text can be divided into four chapters. Firstly, it sets bases for later argument by briefing the origination, the cultural background and the relationship of joint tort and indirect infringement of patent.Secondly, it introduces the lawsuits concerning the two law systems in other countries and districts in comparative perspectives and gives summaries separately.Thirdly, it concerns that there's no necessity of establishing the sole indirect infringement in patent law as the indirect infringement has defect in itself from the view of academy and takes unreasonable cost on legislation resources and legal transplantations from the view of the effect.The final one was the creative part of the paper. It sets three subsections. At first, following the nature of joint tort and various cases in our courts, it tries to explicate all the conducts, described as indirect infringement, to demonstrate the feasibility that using joint tort can interpret the various conducts of indirect infringement of patent. And then argues the rationality through the discussion with the opinion upholding the sole legislation in patent law. The third section focus on the necessity in the light of legal,judicial and social situation by comparing to the method in Taiwan District.